Recommendation 4–1 Commonwealth, state and territory governments should provide support for the establishment of an independent justice reinvestment body. The purpose of the body should be to promote the reinvestment of resources from the criminal justice system to community-led, place-based initiatives that address the drivers of crime and incarceration, and to provide expertise on the implementation of justice reinvestment.
Its functions should include:
- providing technical expertise in relation to justice reinvestment;
- assisting in developing justice reinvestment plans in local sites; and
- maintaining a database of evidence-based justice reinvestment strategies.
The justice reinvestment body should be overseen by a board with Aboriginal and Torres Strait Islander leadership.
Recommendation 4–2 Commonwealth, state and territory governments should support justice reinvestment trials initiated in partnership with Aboriginal and Torres Strait Islander communities, including through:
- facilitating access to localised data related to criminal justice and other relevant government service provision, and associated costs;
- supporting local justice reinvestment initiatives; and
- facilitating participation by, and coordination between, relevant government departments and agencies.
4.49 Justice reinvestment is place-based, in that it involves working with a community to design localised solutions to identified local drivers of contact with the criminal justice system. It also relies on a distinct data-driven method to inform the development of options for reform. Central to the success of the JRI in the US has been technical assistance to analyse data and develop policy options for reducing contact with the criminal justice system.
4.50 The ALRC considers that the promise of justice reinvestment in addressing Aboriginal and Torres Strait Islander incarceration relies on initiatives being designed in partnership with Aboriginal and Torres Strait Islander people, and with Aboriginal and Torres Strait Islander governance. However, it also considers that a centralised expert body can assist the process of justice reinvestment, acting to provide technical assistance to justice reinvestment sites and to promote, coordinate and track justice reinvestment initiatives.
4.51 There has been significant support for justice reinvestment in Australia, including from two successive Aboriginal and Torres Strait Islander Justice Commissioners, Tom Calma AO and Mick Gooda. In addition, a number of Parliamentary Inquiries have recommended that there be support for justice reinvestment, including the:
- Senate Standing Committee on Legal and Constitutional Affairs Inquiry into the value of a justice reinvestment approach to criminal justice in Australia (Senate Justice Reinvestment Inquiry) in 2013; 
- House of Representatives Standing Committee on Indigenous Affairs Inquiry into harmful use of alcohol in Aboriginal and Torres Strait Islander communities in 2015;
- Senate Finance and Public Administration References Committee Inquiry into Aboriginal and Torres Strait Islander experience of law enforcement and justice services in 2016; and
- Senate Community Affairs Reference Committee Inquiry into indefinite detention of people with cognitive and psychiatric impairment in Australia in 2016.
4.52 A number of those closely involved in justice reinvestment in Australia supported a national justice reinvestment authority, including Just Reinvest NSW. The 2013 Senate Justice Reinvestment Inquiry recommended that an independent central coordinating body for justice reinvestment be established.
4.53 The body should be a national one because justice reinvestment involves a holistic approach to the drivers of incarceration, which extend beyond justice-related factors to community and social determinants of crime and incarceration. These policy priorities extend across all levels of government.
4.54 The ALRC envisages a limited role for the justice reinvestment body. It would not have authority to impose justice reinvestment on a site. Instead, similarly to the US, the justice reinvestment body would provide technical assistance only where requested to do so, working in partnership with relevant governance and decision-making structures. The justice reinvestment body would also not have authority to direct the allocation of resources. Therefore, a supporting recommendation is that Commonwealth, state and territory governments support place-based justice reinvestment initiatives, through resourcing, facilitating access to data, and facilitating coordination between relevant government departments.
An independent expert body
4.55 The value of an external facilitator for justice reinvestment has been recognised in overseas jurisdictions. US justice reinvestment models routinely utilise expert bodies as technical assistance providers. Academics from the Australian Justice Reinvestment Project have observed that in the US, technical assistance providers have brought ‘independence and legitimacy’ to the justice reinvestment process. They have offered an ‘independent voice in developing policy options, helped achieve buy-in from stakeholders across the sector and eased the path for reforms that might not otherwise have been well received’.
4.56 The UK House of Commons Justice Committee endorsed the importance of an expert body, noting that ‘a policy which promotes the most effective use of resources to reduce crime and manage offenders would benefit from the existence of an independent cross-disciplinary centre of excellence’. The Committee set out options for its establishment:
our preference would be to establish an independent national crime reduction centre of excellence, we acknowledge that this may not be immediately feasible in the current economic climate. Alternative shorter-term mechanisms could include: establishing a multi-disciplinary team of internal researchers from across Government; drawing on the expertise of a consortium, or regional consortia, of external academics similar to the Scottish Centre for Crime and Justice Research; or, an enhanced role for the correctional services panel which currently advises [the National Offender Management Service].
4.57 Some submissions supporting the establishment of a national justice reinvestment body argued that it should be established by statute. However, the ALRC sees promise in utilising a corporate structure, in the form of a company limited by guarantee, to establish an independent not-for-profit body supported by Commonwealth, state and territory funding. There are precedents for this type of expert body. Australia’s National Research Organisation for Women’s Safety Limited (ANROWS) is an independent, not-for-profit company limited by guarantee, established as an initiative under Australia’s National Plan to Reduce Violence against Women and their Children 2010-2022. It is jointly funded by the Commonwealth and all state and territory governments, who are the members of the company. ANROWS has developed a national research agenda to reduce violence against women and their children, under which it conducts a national research program.
4.58 However established, Aboriginal and Torres Strait Islander leadership is important at all levels of justice reinvestment, and the ALRC recommends that the governance of the justice reinvestment body have Aboriginal and Torres Strait Islander leadership.
4.59 Technical assistance bodies in the US, such as the Council of State Governments Justice Center, the Vera Institute of Justice and the Urban Institute are independent not-for profit bodies, supported by a mix of public and private funding.
4.60 The Commonwealth is well placed to champion and facilitate justice reinvestment, in recognition that a coordinated, whole-of-government approach to addressing drivers of incarceration is necessary. There is also considerable alignment between justice initiatives and other whole-of-government efforts to address Aboriginal and Torres Strait Islander disadvantage, through the Closing the Gap policy framework. This was acknowledged in the now lapsed National Indigenous Law and Justice Framework 2009-2015, which stated that
[t]here are clear links between the Framework and the work being undertaken by the Commonwealth and State and Territory Governments through the Council of Australian Governments (COAG) to ‘close the gap’ between Indigenous and non‐Indigenous Australians in relation to key life outcomes, particularly life expectancy, child mortality, education, health and employment.
4.61 The ALRC has recommended that targets to reduce the incarceration rates of Aboriginal and Torres Strait Islander peoples be adopted. Justice reinvestment would be one means of achieving these targets.
Working with communities
4.62 Central to the promise of justice reinvestment in addressing Aboriginal and Torres Strait Islander incarceration in Australia has been that it has operated with a community development approach, with ownership by the local Aboriginal community. This involves at least two elements: first, working in partnership with communities, rather than imposing justice reinvestment plans on them, and second, devising tailored strategies to address the particular drivers of incarceration in a community.
4.63 As to the first of these, Just Reinvest put it this way: ‘JR is place-based, it looks at local problems and local solutions. For Just Reinvest NSW, this means Aboriginal led, community driven initiatives. Self-determination is critical’. Similarly, the Law Council of Australia argued that ‘programs and policies that incorporate the culture of Aboriginal and Torres Strait Islander people and are based on local community knowledge and understanding are critical in developing effective solutions and generating positive outcomes’.
4.64 A number of submissions emphasised the importance of adaptability in implementing justice reinvestment. Queensland Law Society argued that ‘a one-size-fits-all approach is not appropriate. Justice reinvestment should be based on the specific drivers of crime and the ‘community assets’ of that community’. Aboriginal Peak Organisations NT observed that ‘for justice reinvestment to be effective, it must embrace the culturally specific needs of Aboriginal people in the local context in which it is implemented’.
4.65 An emphasis on flexibility and tailored solutions is not incompatible with the existence of an expert justice reinvestment body. Indeed, a number of the submissions that stressed the importance of community-led, flexible approaches also supported the creation of a national justice reinvestment body. For example, Just Reinvest NSW argued that
JR requires a centralised body with a clear mandate to work across government departments and agencies to monitor and quantify social and economic outcomes of JR initiatives. The centralised body would support local initiatives through their governance structures by collecting data, assisting in strategy development and building community capacity.
4.66 A group of academic experts on justice reinvestment, Dr Jill Guthrie, Fiona Allison, Professor Chris Cuneen, and Dr Melanie Schwartz called for a
JR Authority that has a mandate to implement and evaluate JR policy. Functions could include:
data collection and analysis;
economic cost-benefit analysis;
testing JR methodological approaches, including where those approaches are informed by local community partnerships; and
the formulation of options for JR initiatives to address the particular underlying causes of crime identified in focus sites.
4.67 The role of the national body would not be to impose reforms on a particular community, but rather to provide technical assistance and expertise in justice reinvestment methodology, to support a community wishing to implement a justice reinvestment approach. In practice, this would likely involve the justice reinvestment body working with local governance structures to progress a justice reinvestment initiative through provision of technical expertise.
4.68 Technical assistance would primarily be required at the preliminary stages of justice reinvestment: justice mapping and development of options for reform. The technical assistance provided for justice mapping is described in this way by the Bureau of Justice Assistance:
Sites receive intensive, onsite technical assistance from nationally recognized criminal justice policy experts and researchers to analyze crime, arrest, conviction, jail, prison, and probation or parole supervision data from the last five to ten years provided by state and/or local agencies; and analyze the cost-effectiveness of the correctional system’s policies, practices, and programs designed to reduce recidivism and increase public safety.
4.69 Technical assistance at the second stage of justice reinvestment—the development of options for reform—is used to ‘help the working group develop practical, data-driven, and consensus-based policies that reduce spending on corrections to reinvest in strategies that can improve public safety’.
4.70 There is also a role for targeted technical assistance in the implementation phase, including assisting in developing implementation plans, and in providing assistance in developing mechanisms for monitoring progress and measuring performance.
4.71 The justice reinvestment body should also act as a centre of expertise on justice reinvestment, including through maintaining a database of research about justice reinvestment, and acting as a centralised location for information about progress in justice reinvestment sites.
The role of government
4.72 Place-based justice reinvestment requires government to work with local communities in progressing strategies to reduce contact with the criminal justice system. While community ownership of an initiative is important, success relies also on governmental willingness to support the implementation of justice reinvestment in identified sites. This support would include participation in working groups or steering committees for local sites, facilitating access to data, and resourcing reinvestment strategies.
4.73 In Bourke, the Marunguka Justice Reinvestment Project has not received direct funding from government. However, the project has received in-kind support from both the Commonwealth and NSW Governments, and includes participation by NSW and Commonwealth department representatives on the project’s steering committee. A preliminary assessment by KPMG noted that a condition of further success in implementation was ‘government developing a new way of working in partnership with the project; facilitating data sharing, and recognising the Bourke Tribal Council as the Aboriginal local governance mechanism to enable local decision making about the delivery and coordination of community services in Bourke’.
4.74 The ACT Government’s commitment to trials of justice reinvestment has occurred within a broader governmental strategy in relation to justice reinvestment. There may be benefit for other state and territory governments in developing justice reinvestment strategies, or to consider formalising a policy position on the alignment of justice reinvestment with other policies, plans or strategies related to Aboriginal and Torres Strait Islander communities. For example, the preliminary assessment of the Marunguka Justice Reinvestment Project by KPMG concluded that it was aligned with a number of NSW and Commonwealth Government priorities, including:
the NSW Government Department of Justice Strategic Plan, by aiming to reduce the involvement of Aboriginal people with crime;
the NSW Government Social Impact Investment Policy by proposing to invest in prevention approaches;
policies and objectives of the NSW Government Department of Aboriginal Affairs by empowering Aboriginal peoples; and
the NSW and Australian Governments, 10-year plan for improving Aboriginal health, Indigenous Economic Development Strategy 2011–2018 and the Council of Australian Government’s Closing the Gap in Indigenous Disadvantage by seeking to improve the social and economic outcomes of Aboriginal peoples.
Challenges for justice reinvestment
Availability of data
4.75 Access to data is a key challenge to the successful implementation of justice reinvestment. This includes the question of whether the appropriate data for analysis is currently captured, as well as the accessibility of this data. The National Congress of Australia’s First Peoples argued that there are ‘many inadequacies in data collection in the Australian criminal justice system, especially on a national level’ and noted that the ‘collection, availability and sharing of data is essential to the successful implementation of a justice reinvestment approach. The first step of analysis and mapping requires standardised and efficient data collection about offending and offenders’.
4.76 Nonetheless, existing initiatives have progressed justice reinvestment with available data. In Bourke, this was facilitated by ‘support from several government departments and project champions … Data from a broad range of government departments (both state and federal) were collected which related to the Bourke community’. The Bourke process also involved collection of a secondary dataset, focused on hearing the views of children and young people in the community, ‘collected though engagement with young people through a series of groups at the local high school’.
4.77 In Cowra, data collection was facilitated through the project’s status as a university research project. Data was obtained from the NSW Bureau of Crime Statistics and Research, as well as collected through interviews with young people, parents, service providers and other stakeholders in the Cowra community, and young people from Cowra who were incarcerated in juvenile or adult corrections systems.
4.78 Kingsford Legal Centre, which sits on the steering committee of Just Reinvest NSW, recommended that data availability be improved:
Data is essential for the identification of underlying causes of incarceration, and the ability of Just Reinvest to specifically tailor its responses according to local needs. Just Reinvest currently relies upon analysis of publically available data. As such, KLC recommends that the NSW government improve the availability of all relevant data, and reduce the cost of its acquisition wherever possible. For instance, currently Australia suffers from a lack of data regarding the costs, availability and effectiveness of alternatives to imprisonment.
4.79 The recommended national body could play a role in brokering the release of such data, as well as in identifying gaps in the data necessary to progress justice reinvestment.
Identifying savings for reinvestment and measuring success
4.80 It has been observed that, compared to the US, the relatively lower overall rates of incarceration and smaller population in Australia may mean that there are ‘relatively less savings to be recaptured and reinvested’. As a consequence, measuring the success of justice reinvestment may require a broader analysis than whether savings are made on criminal justice spending, to incorporate other social benefits, including improving public safety and community wellbeing. For example, as Brown et al have pointed out, a strategy such as ‘supporting women in the community may bring financial and social benefits, such as fewer living on welfare and fewer children in care, that do not accrue to the criminal justice system’.
4.81 The Senate Justice Reinvestment Inquiry considered that the economic value of justice reinvestment was likely to be realised over the long term, and best measured through considering the value of averted costs associated with contact with the criminal justice system in a broad sense:
The committee considers that justice reinvestment provides economic benefits in the long term through shifting resources away from incarceration towards prevention, early intervention and rehabilitation. Benefits will accrue to government through improved economic participation of offenders and potential offenders, decreased use of the welfare system and improved health outcomes.
While there will be economic benefits to government, the committee considers that the benefits through a justice reinvestment for individuals and communities will be more important. By addressing the social determinants of crime—unemployment, homelessness, health and education issues—justice reinvestment has the potential to improve the life outcomes of individuals and build strong, safe and cohesive communities.
4.82 Especially where a justice reinvestment focus is on preventative, ‘front-end’ strategies to reduce or prevent contact with the criminal justice system, it is likely that initial implementation of justice reinvestment would require some level of upfront or seed funding. The Senate Justice Reinvestment Inquiry Report canvassed views on this, and noted that submissions suggested that:
Once initial funding has been obtained, and community programs are running effectively, savings will accrue as offenders are rehabilitated and provided with treatment to deal with the underlying causes of their behaviour and reoffending is significantly reduced.
The Attorney-General’s Department provided its views … that justice reinvestment was probably not budget neutral. It is a long term strategy and savings will be not be generated from law and order budgets in the short term. Potentially, significant upfront funding will be needed with savings ‘hopefully’ becoming available in the long term.
4.83 There are existing approaches which can be drawn on to undertake analyses of the costs and benefits of justice reinvestment strategies. In the US, the Washington State Institute of Public Policy has developed an influential method for undertaking a ‘benefit-cost analysis’ of public policy options, including options to improve criminal justice outcomes. This is a three-stage process:
First, we systematically assess all high-quality studies from the United States and elsewhere to identify policy options that have been tested and found to achieve improvements in outcomes. Second, we determine how much it would cost Washington taxpayers to produce the results found in Step 1, and calculate how much it would be worth to people in Washington State to achieve the improved outcome. That is, in dollars and cents terms, we compare the benefits and costs of each policy option. It is important to note that the benefit-cost estimates pertain specifically to Washington State; results will vary from state to state. Third, we assess the risk in the estimates to determine the odds that a particular policy option will at least break even.
4.84 Another such approach is to quantify the ‘social return on investment’ of justice reinvestment strategies. In the UK, a social return on investment analysis of alternatives to incarceration for women found that, over ten years, for every £1 spent on alternatives to prison, £14 worth of social value was generated to women and their children, victims and society. Professor Julie Stubbs has observed that this
demonstrates the paradox of women’s imprisonment, in that while the number of women imprisoned relative to men is small, the potential negative impact it has on society is very large; women’s incarceration is very likely to diminish the prospects of future generations since women are an important ‘resource’ for their communities and families, and especially their children.
4.85 In Australia, cost-benefit studies of diversion and early intervention for vulnerable groups has concluded that an integrated social and disability support program for these groups would provide between $1.20 and $2.40 in savings for criminal justice and tertiary health and human services for each dollar invested. A social return on investment analysis of youth programs in remote central Australia also found that for every dollar invested, between $3.48 and $4.56 of value would be created.
4.86 Additionally, in the context of JRI in the US, it has been observed that alternative outcomes, in addition to identifying savings, are relevant to measuring the success of justice reinvestment:
In addition to reducing justice system spending and encouraging reinvestment, JRI has encouraged systems change and the creation of new, collaborative roles within agencies, as well as ongoing data analysis, increased training and capacity, and implementation of evidence-based practices.
4.87 Given the complexity of the task of quantifying the costs and benefits of justice reinvestment, the ALRC considers that the recommended national justice reinvestment body could provide an important locus of expertise for such analysis.
Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice and Native Title Report 2016 (Australian Human Rights Commission, 2016); Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice and Native Title Report 2014 (Australian Human Rights Commission, 2014); Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2009 (Australian Human Rights Commission, 2009).
Senate Legal and Constitutional Affairs References Committee, Parliament of Australia, Value of a Justice Reinvestment Approach to Criminal Justice in Australia (2013). However, Coalition members of the Committee, while ‘warmly endorsing’ the principle of justice reinvestment, did not support the recommendations in the report.
House of Representatives Standing Committee on Indigenous Affairs, Parliament of Australia, Alcohol, Hurting People and Harming Communities: Inquiry into the Harmful Use of Alcohol in Aboriginal and Torres Strait Islander Communities (2015) rec 14.
Senate Standing Committees on Finance and Public Administration, Parliament of Australia, Aboriginal and Torres Strait Islander Experience of Law Enforcement and Justice Services (2016) recs 7–8.
Senate Community Affairs Reference Committee, Parliament of Australia, Indefinite Detention of People with Cognitive and Psychiatric Impairment in Australia (2016) rec 24.
National Aboriginal and Torres Strait Islander Legal Services, Submission 109; NSW Bar Association, Submission 88; Just Reinvest NSW, Submission 82; J Guthrie, F Allison, M Schwartz, C Cunneen, Submission 50.
Senate Legal and Constitutional Affairs References Committee, Parliament of Australia, Value of a Justice Reinvestment Approach to Criminal Justice in Australia (2013) rec 8.
Fox, Albertson and Wong, above n 6, 34.
A Senate Inquiry into Aboriginal and Torres Strait Islander experiences of law enforcement and justice Services recommended that that the Commonwealth Government contribute to the development of justice reinvestment trials at sites in each state and territory; and that the Commonwealth Government support Aboriginal led justice reinvestment projects: Senate Standing Committees on Finance and Public Administration, Parliament of Australia, Aboriginal and Torres Strait Islander Experience of Law Enforcement and Justice Services (2016) recs 8–9.
David Brown et al, above n 4, 155.
House of Commons Justice Committee, Cutting Crime: The Case for Justice Reinvestment House of Commons Paper No HC 94-I, Session 2009–10 (2009) 132.
See, eg, National Aboriginal and Torres Strait Islander Legal Services, Submission 109; J Guthrie, F Allison, M Schwartz, C Cunneen, Submission 50.
Australia’s National Research Organisation for Women’s Safety, Who We Are <www.anrows. org.au/about/who-we-are>.
CSG Justice Center, Funders and Partners <https://csgjusticecenter.org/funding-partners/>; Vera Institute of Justice, About <www.vera.org/about/financials>; Urban Institute, Our Funding <www.urban.org/ aboutus/our-funding>.
Standing Committee of Attorneys-General, National Indigenous Law and Justice Framework 2009–2015 (2010) 6. The submissions of the ACT and NT Governments also recognised the need for a whole-of-government approach: Northern Territory Government, Submission 118; ACT Government, Submission 110.
See ch 16.
Just Reinvest NSW, Submission 82.
Law Council of Australia, Submission 108.
See, eg, Aboriginal Peak Organisations (NT), Submission 117; Queensland Law Society, Submission 86; Change the Record Coalition, Submission 84; Aboriginal Legal Service of Western Australia, Submission 74.
Queensland Law Society, Submission 86.
Aboriginal Peak Organisations (NT), Submission 117.
Just Reinvest NSW, Submission 82. The NSW Bar Association endorsed Just Reinvest’s submission in relation to justice reinvestment: NSW Bar Association, Submission 88.
J Guthrie, F Allison, M Schwartz, C Cunneen, Submission 50. NATSILS also supported a national body: National Aboriginal and Torres Strait Islander Legal Services, Submission 109.
Bureau of Justice Assistance, What Is JRI? Justice Reinvestment Initiative <www.bja.gov/programs /justicereinvestment/what_is_jri.html>.
KPMG, above n 59, 35, 76.
See, eg, Change the Record Coalition, Submission 84; Criminal Lawyers Association of the Northern Territory, Submission 75; National Congress of Australia’s First Peoples, Submission 73.
National Congress of Australia’s First Peoples, Submission 73. On the availability of data, see further ch 3.
KPMG, above n 59, 37.
Jill Guthrie et al, Exploring the Potential of Justice Reinvestment in Cowra: Community Report (Australian National University, 2017) 20–21.
Kingsford Legal Centre, Submission 19.
Some submissions identified difficulties in obtaining information from government departments to enable justice mapping: Criminal Lawyers Association of the Northern Territory, Submission 75; Aboriginal Peak Organisations (NT), Submission 117.
Wood, above n 9, 114.
David Brown et al, above n 4, 185.
Senate Legal and Constitutional Affairs References Committee, Parliament of Australia, Value of a Justice Reinvestment Approach to Criminal Justice in Australia (2013) 81.
Washington State Institute for Public Policy, Benefit-Cost Results <www.wsipp.wa.gov/BenefitCost>. See also Fox, Albertson and Wong, above n 6, 31; David Brown et al, above n 4, 145–7.
Julie Stubbs, ‘Downsizing Prisons in an Age of Austerity? Justice Reinvestment and Women’s Imprisonment’ (2016) 6(1) Oñati Socio-Legal Series 91, 107.
David Brown et al, above n 4, 147, citing Eileen Baldry, ‘Disability at the Margins: Limits of the Law’ (2014) 23(3) Griffith Law Review 370.
Central Australian Youth Link-Up Service, Submission 18; Nous Group, Investing in the Future—The Impact of Youth Programs in Remote Central Australia: A Social Return on Investment (SROI) Analysis (2017).
Erika Parks et al, ‘Local Justice Reinvestment Strategies, Outcomes, and Keys to Success’ (Urban Institute Justice Policy Center, 2016) 15.